"Full and final settlement". Can I still sue for the remainder?
Trent
Work done for a client, who disputes quality of delivery and doesn't pay
final bill. However, she offers to pay half the outstanding amount "as a
gesture of good faith, in full and final settlement". If I accept this, am
I accepting their terms, or can I still pursue them for he remainder?
My thinking is that I should shut up until the half has been paid, then head
for www.moneyclaim.gov.uk, but it would be useful to know whether this is a
good approach - if I intimate that I'm going to head to law before they've
paid the half, then I suspect that even this won't be paid.
Any advice appreciated!
Cheers,
Trent
Chris R
Any advice appreciated!
----------------------------------------
If you accept her terms, you cannot claim the balance.
If on the other hand you say nothing and she sends the half payment, you can
bank that and immediately reply saying the payment is taken as part-payment
on account of the full amount due.
Chris R
The Todal
"Trent" <Tr...@invalid.invalid> wrote in message
news:ie7tjf$5jh$1...@news.eternal-september.org...
> Here's the situation...
>
> Work done for a client, who disputes quality of delivery and doesn't pay
> final bill. However, she offers to pay half the outstanding amount "as a
> gesture of good faith, in full and final settlement". If I accept this,
> am I accepting their terms, or can I still pursue them for he remainder?
If you accept the sum offered and do not stipulate that it is in part
settlement, it is likely that you will be unable to sue for the balance.
>
> My thinking is that I should shut up until the half has been paid, then
> head for www.moneyclaim.gov.uk, but it would be useful to know whether
> this is a good approach - if I intimate that I'm going to head to law
> before they've paid the half, then I suspect that even this won't be paid.
>
> Any advice appreciated!
It all depends on how strong your claim is, and how strong her case is.
QUIT
The Todal
"The Todal" <deadm...@beeb.net> wrote in message
news:8mpf7v...@mid.individual.net...
I didn't put the word QUIT in my post, so I think it must have been inserted
by the moderation software!
The Todal
"mark" <noon...@noads.com> wrote in message
news:tuOdnfOhXv9vCJrQ...@bt.com...
> X-No-Archive:Yes
>> news:ie7tjf$5jh$1...@news.eternal-september.org...
>>> Here's the situation...
>>>
>>> Work done for a client, who disputes quality of delivery and doesn't pay
>>> final bill. However, she offers to pay half the outstanding amount "as
>>> a
>>> gesture of good faith, in full and final settlement". If I accept this,
>>> am I accepting their terms, or can I still pursue them for he remainder?
>>
>> If you accept the sum offered and do not stipulate that it is in part
>> settlement, it is likely that you will be unable to sue for the balance.
>
>
> before here and I seem to recall there was a strong opinion that when a
> debt
> is being (part) paid and a statement included that says "in full and final
> settlement" ..that it had little no (..or little) legal grounding..and
> therefore did not take out the remainder of the debt from the possibility
> of
> further legal actions..
> Perhaps I have mis-recollected or misunderstood the original
> thread...perhaps not?
>
No, you have to distinguish between two possible scenarios (and indeed,
there may be others).
1. Your defendant sends you a cheque for less than the full amount and says
"this is offered in full and final settlement and presentation of this
cheque will be taken as acceptance of this offer". You pay it into your
account. There is conflicting authority on the point, but it is arguable
that you can still sue for the remainder.
2. Your defendant writes to you and says "I am willing to offer you the sum
of [x] as a goodwill gesture in full and final settlement". You say "thank
you, please send me the cheque" and you pay it in. That could be construed
as an acceptance of the offer, debarring you from suing for the balance.
Roland Perry
Tue, 14 Dec 2010, mark <noon...@noads.com> remarked:
>I cannot find the thread now but... this "phrase" has been discussed
>before here and I seem to recall there was a strong opinion that when a debt
>is being (part) paid and a statement included that says "in full and final
>settlement" ..that it had little no (..or little) legal grounding..and
>therefore did not take out the remainder of the debt from the possibility of
>further legal actions..
>Perhaps I have mis-recollected or misunderstood the original
>thread...perhaps not?
In the past it has been discussed in the context of an unsolicited note
included with a cheque, which the post-room cannot be expected to
understand (or maybe even to see), let alone bind the recipient by
ignoring.
The OP is in a different situation, because the offer has been made in
advance, and he is fully aware of it.
--
Roland Perry
Trent
is that I'm stuck between a rock and a hard place: I know in advance that
the client will send an electronic payment in a week's time comprising half
the outstanding amount. If I say nothing and the payment is made, then I'm
on a sticky wicket in terms of chasing the other half. But if I kick up a
stink before the payment is made, then the payment is unlikely to be made
and I'll need to head to the courts for the full amount.
Is this a fair summary?
The Todal
I am not sure if I have read all your posts. However if she makes an offer
of part of the sum due, you are silent and she then pays it, then certainly
you can sue for the balance.
Man at B&Q
Have you acknowledged their offer in any way? You might be away with
no access to mail/e-mail for the period between the offer and the
payment in which case I don't see how you coule be construed to have
agreed to take it in part payment.
MBQ
Trent
no access to mail/e-mail for the period between the offer and the
payment in which case I don't see how you coule be construed to have
agreed to take it in part payment.
--------------------------------------
The client says she posted it, and I requested an online copy, as I hadn't
received it. So I can't claim that I haven't seen the offer, although I
haven't acknowledged it or commented on it.
Dave Baker
"Trent" <Tr...@invalid.invalid> wrote in message
news:ie7tjf$5jh$1...@news.eternal-september.org...
The case that established the limits of F&FS was D & C Builders Ltd v Rees
(1965). D&C did work for R who knowing that D&C were in financial
difficulties offered only a part payment in F&FS. D&C accepted but then
still sued for the balance.
The Court of Appeal held that it was not inequitable to enforce payment of
the balance because R had used undue influence to obtain D&C's acceptance in
the knowledge they were in financial trouble.
However it would be a rare case that met those criteria so unless you are in
financial trouble and your customer knows this if you accept an offer in
F&FS then you will be bound by it.
So you have to decide whether a court would find your work is perfect in all
respects and award you full payment or whether the other side can prove any
fault. It's not normally that hard to cobble up some sort of complaint about
any work.
My normal advice in contract (or indeed any) dispute is to say as little as
possible yourself because you'll surely end up regretting saying something
eventually even if it seemed right at the time and get the other side to say
(write) as much as possible. Give someone enough rope etc. Ask her to set
out in detail what she thinks is wrong with the work. Ask a friend to look
it over and tell you if anything she says has merit because you will surely
be biased. Offer to discuss and fix any alleged faults without admitting
liability. Find out what the strength of her alleged case is first and then
you can decide whether to sue or accept the offer and get on with your life.
If you stated the amounts concerned it would help because the small claims
procedure is a lot more simple than a full blown county court case.
--
Dave Baker